Brexit: the September negotiations

Published Friday, October 6, 2017

What happened at the fourth round of Brexit negotiations from 25 to 28 September 2017? And what did Theresa May say that was so important in her speech in Florence on 22 September? Have discussions progressed sufficiently to move on to a negotiation of the UK's future trade and other relations with the EU? The EU thinks not; the UK is impatient to move on. This is what happened ...

The fourth round of Brexit negotiations

The fourth round of withdrawal negotiations ran from 25 to 28 September 2017. The EU’s Brexit negotiator, Michel Barnier, said the September talks were “constructive” but “not yet there”, while the UK negotiator, David Davis, said they were “making decisive steps forward”. The general EU view at the moment is that not enough progress has been made for the negotiations to move on to discussions about the UK’s future relations with the EU.

Progress in key areas

Citizens’ rights

The Government has agreed to give ‘direct effect’ to citizens’ rights in the withdrawal agreement. David Davis said in his final statement that the agreement would be incorporated “fully into UK law. Direct effect if you like”. Michel Barnier welcomed this as “the assurance to our citizens that they will be able to invoke their rights, as defined by the Withdrawal Agreement, before UK courts”.

But what exactly does the Government mean by ‘direct effect’? Will it apply to the whole withdrawal agreement or just to citizens’ rights? And is it the same as the EU’s interpretation of direct effect?

Areas where gaps remain include family reunification, the export of social security benefits, onward movement within the EU, and administrative procedures.

The retention of the European Health Insurance Card for all UK citizens – not just those living in the EU after Brexit – was postponed until the next phase of negotiations.

The two sides agreed that after Brexit the UK would apply EU law concepts used in the withdrawal agreement consistently with CJEU case law as at the point of departure. But the UK Government does not agree that the CJEU should have a role in ensuring this, insisting that UK courts will enforce citizens’ rights.

Financial settlement

The exit bill remains a major area of disagreement, not so much in principle – the Prime Minister said in Florence that the UK would honour commitments made during its EU membership - but with regard to the method of calculation, the overall amount and liability for ongoing commitments such as EU pensions and projects that need funding beyond 2020. David Davis said he was not yet in a position to identify the UK’s commitments and insisted he had a duty to UK taxpayers to go through the EU’s exit bill “line by line”.

Ireland/Northern Ireland

There is a shared commitment to maintain the Common Travel Area, but no agreement on technicalities. Both sides have also readily agreed on the need to maintain the peace process but there is no clarity yet on how to do this.

Other issues

Transitional period

In her Florence speech, Theresa May proposed a two-year transition or implementation period on current terms, but many questions remain, such as a role for the EU Court of Justice (which the UK rules out), UK adherence to EU law and the UK’s relations with other countries with which the EU has agreements.

EU and UK position and policy papers

On 7 September, the Commission published five new position papers on: intellectual property rights (including geographical indications); the use of Data and Protection of Information Obtained or Processed before the Withdrawal Date; Customs related matters needed for an orderly withdrawal of the UK from the Union; the Dialogue on Ireland/Northern Ireland; and Public Procurement.